R v Earl [2008] VSCA 162

2 The applicant now seeks leave to appeal against that sentence on the grounds that:

(1) The judge failed to give full effect to the fact that the Crown had withdrawn the counts of causing serious injury;

(2) The judge erred in imposing sentence on the basis that the punches to the victim occurred over a two-hour period;

(3) The judge erred in her consideration of the applicant's history; and

3 The facts of the matter are set out at some length in the judge's sentencing remarks. In 1997 the applicant was convicted of 11 counts of the rape of his 19-year old niece on 11 separate occasions over a period of two months during which the applicant was living in his brother's home following a marriage breakdown. Despite conviction, the applicant maintained his innocence and refused to undertake a sex offenders course and thus served the whole of the head sentence of five years and five months.

4 During the year in which the rapes occurred, the applicant met Laura Earl and by the end of 1992 he and she had begun a relationship which continued until the applicant was charged with the rapes in 1996. Thereafter, Ms Earl supported the applicant and visited him in gaol. But after about two years she ceased to do so due, the applicant believed, to pressure imposed by her family and in particular by her daughter. Ms Earl continued, however, to telephone the applicant in gaol and upon his release they resumed their relationship. They were married in November 2002 and lived together in Portland.

5 While in gaol, the applicant was assisted by the Salvation Army and after his release he and Ms Earl became involved in that organisation and attended church and bible study courses there, and the applicant worked for over five years for several hours every weekday and sometimes on Saturdays and public holidays, collecting items for sale in the Salvation Army thrift shop.

6 On 15 September 2006, after the applicant and Ms Earl had returned home from a bible studies class, they began to argue over the fact that Ms Earl planned to see her daughter the next day. The applicant sought to dissuade her from doing so because of his belief that her daughter had imposed pressure on her not to visit him when he was in gaol for rape. As the judge put it, the argument then went beyond words when the applicant followed Ms Earl into the bedroom and, while she was sitting on the bed, punched her six times in the head. As a result, she temporarily loss consciousness and suffered pain, including severe headache and stiffness and soreness in her neck.

7 Ms Earl put up with her injuries for two days until her daughter persuaded her to seek medical attention. She was then admitted to hospital and found to have a large sub-arachnoid haemorrhage which was life threatening and for which she underwent emergency surgery after being transferred to the Alfred Hospital. She remained in a coma for some time, and then on 22 February 2006 it was discovered that she was also suffering from carotid aneurysms for which she had to undergo further surgery, including plastic surgery, to ameliorate post-operative scarring. As a result of the carotid aneurysms, Ms Earl suffered permanent changes to her life and is no longer able to live independently. According to their victim impact statements, Ms Earl and her mother and daughter have all been affected very significantly. But as the judge noted in her sentencing remarks, the medical evidence was to the effect that it could never be known for certain that there was a causal link between the applicant's attack on Ms Earl and the serious medical events which followed it.

Ground 1: Full benefit for withdrawal of serious injury counts

8 Under cover of ground 1, counsel for the applicant contends that the length of the sentence imposed and the judge's sentencing remarks imply that at least part of the sentence was referable to the effects on the lives of Ms Earl and her mother and daughter for which it was not established that the applicant was responsible. More particularly, he complains the judge engaged in an artificial or otherwise impermissible process of reasoning by first taking into account a number of matters mentioned in the three women's victim impact statements and then subsequently purporting to extract from the equation all such matters other than those which related directly to the actions of the applicant in recklessly causing injury.

9 I put aside for the moment the length of the sentence and turn to her Honour's reasons. Contrary to the applicant's contentions, they do not appear to me to be artificial or otherwise indicative of an impermissible process of reasoning. Certainly, they include a recitation of some injuries which could not attributed to the applicant. But they also show that the judge was mindful of the need to punish the applicant only for the offence to which he had pleaded guilty in light only of the consequences for which he was proved to be responsible. Thus as her Honour put it:

... the medical evidence provided to me by the treating doctor, by a neurosurgical registrar and by a consultant forensic pathologist show that it can never be known for certain that there was a causal link between your punches and the serious medical events which followed. It may be that there is no other connection than the fact that they occurred within days of each other. Therefore, while I note the pain and suffering of Ms Earl, Ms Araldi and Ms Johnson, there is only a limited amount I can take into account from their victim impact statements and that is as follows.[1]

I accept that Ms Earl suffered considerably as a result of your actions. I accept that she suffered pain, loss of consciousness, severe headache and soreness and stiffness in her neck. I also accept that Ms Earl suffered distress as a result of reflecting on your violent actions to her that night. I also accept that she has suffered nightmares and feels unsafe, too afraid to be left alone. I accept that these consequences have also affected Ms Araldi and Ms Johnson. Ms Araldi is now the fulltime carer of her adult daughter, and also that duty is as a result of the other serious medical events, she also has to deal with the consequences of distress, stress, nightmares and fear on a daily basis which I have accepted arise from your assault. Likewise, Ms Johnson must also deal with those consequences when attending on her mother. These are all matters I take into account in determining an appropriate sentence.[2]

There were [however] no soft tissue injuries to Ms Earl's head which would be likely with forceful punching, so it seems that the level of force involved in punching her in the head was not great and I take that into account also ...[3]

In the result, as her Honour said, the sentence which she imposed was calculated to express:

... denunciation by the court of your conduct, [and] provides adequate deterrence and adequately reflects the gravity of the offence as it has now been presented.[4]

10 In the course of oral argument counsel for the applicant submitted this morning that whilst there was an evidential basis from which the judge could infer that Ms Araldi was affected in the fashion she found, there was no basis from which to draw a conclusion to that effect in the case of Ms Johnson. It seems to me, however, that what was said by counsel for the respondent was correct, namely, that because it was clear that Ms Araldi had suffered such consequences and because it was plain that Ms Johnson lived with Ms Araldi and Ms Earl, as it were, in a family unit, the inference was ineluctable that she would suffer from the same consequences herself.

11 Under ground 2, counsel for the applicant contends that in the section of the sentencing remarks which were concerned with aggravating features, the judge referred to the assault as having taken place over a period of two hours. In fact, that was not alleged by the Crown as part of the agreed opening and it had been expressly agreed between the Crown and the applicant that such an allegation would not form part of the opening. Therefore, in counsel's submission, the sentencing discretion miscarried.[5]

12 In my view that submission is not persuasive. What the judge actually said was that:

It is unclear how long this assault went on for, but I note that Ms Earl described in her statement the half dozen or so punches as occurring over a two-hour period.

Furthermore, her Honour is an experienced criminal trial judge and therefore it can hardly be supposed that she would not have been mindful of the need for aggravating circumstances to be proved beyond reasonable doubt,[6] or of the limited admissibility and thus utility of statements in victim impact statements which are adverse to a prisoner who stands to be sentenced.[7] Bearing that in mind, I read what her Honour said as meaning no more than that, despite what was said in the victim impact statements about the duration of the assault and the period of its duration

13 In the course of oral argument, counsel for the applicant propounded an alternative argument that, upon his instructions, the form of agreed Crown opening had been negotiated from the perspective of defence counsel as a platform from which to enable defence counsel to put to the judge, and thus have her Honour impose sentence on the basis that the six blows were struck in rapid succession within a very short space of time. As it was, however, counsel contended, the judge had apparently gone beyond the ambit of the agreed opening in order to determine that the six blows were inflicted over an indeterminate period of time which her Honour took implicitly to be considerable. In counsel's submission, that was an aggravating circumstance which was inconsistent with the agreed basis of the plea and therefore with the result that the sentencing discretion had miscarried.

14 I reject that submission. It is not disputed that the Crown opening was in accordance with the plea agreement and, as the opening stood, the duration of the assault was indeterminate. Nor is it suggested, nor could it properly be, that the judge was bound otherwise to make a finding on the issue which was any more favourable to the appellant than that the period of the duration of the attack was unclear. Further, as counsel for the respondent pointed out, defence counsel did not make any submission to the judge that her Honour was bound to find or even should find that the duration of the assault was limited; even less that she was bound to find that the six blows were inflicted in rapid succession in a very short space of time. The only defence submission advanced below as to the findings of fact to be made was that the judge should sentence on the basis of 'the evidence before the court and what are the agreed facts in opening'. Thus, as I see it, the appellant got exactly what he asked for.

15 I add that, although it makes no difference in this case, I regard it as less than satisfactory for an appellant to advance submissions about what defence counsel may have understood or misunderstood concerning the effect of the plea agreement, unless defence counsel's understanding or misunderstanding is put on oath. If it is proposed in future to advance a case of mistake or something of that nature, I consider that it should only be done upon the basis of proper affidavit material, and then only after fair notice to opposing counsel.

16 The third ground of complaint is that the judge paid particular attention to the appellant's prior convictions for rape, and as a result that the sentence was impermissibly influenced by the fact of those offences.

17 I do not think that is so. What the judge said about the prior convictions was that:

These prior convictions are relevant to the matter for which I have to sentence you in the following ways. The rapes involve a person with close family connection to you, as here. They also represent a breach of trust between you and the family member, as here. They are violent offences, as here. Also, they show some reluctance in you to undertake appropriate steps towards your rehabilitation.

I note, of course, that there are differences, including the degree of violence and the level of seriousness. The other way in which the rape convictions are relevant is in providing background to this case.

Her Honour then went on to recount how the applicant had met Ms Earl in the year in which he had committed the rapes and how they had remained in contact while he was in prison for five and a half years serving the sentence imposed on account of the rapes. I see no error in that.

18 Counsel for the applicant submitted that the judge should have accorded the rapes less relevance that she did: first, because they had occurred some 16 to 17 years prior to the time of sentencing and involved a different type of offending; and secondly, because the applicant had not committed any other offences between 1992 and 1997 or after his release from gaol. It was also important in counsel's submission that the applicant had taken substantial steps towards rehabilitation since his release from gaol and thus the fact that he had declined to undergo a sex offenders course while in gaol was of limited relevance.

19 The trouble with that submission, however, is that it is apparent that the judge gave active consideration to each of the matters referred to by counsel and consciously balanced them against the significance of the rapes. The judge expressly noted the time at which the rapes had occurred and the events which had occurred since. Her Honour expressly noted that the rapes involved a different type of offending. As she said:

I note, of course, that there are differences, including the degree of violence and the level of seriousness.

Her Honour also expressly noted that the appellant had benefited from his work with the Salvation Army following his release from gaol and that he had not re-offended in any way. It is apparent, too, that the judge attributed only limited significance to the applicant's refusal to undergo a sex offenders course. As her Honour said, it showed some reluctance to undertake appropriate steps towards rehabilitation, and in my view that is plainly what it did show.

20 In the result, and having regard to the length of sentence which the judge imposed, and the fact that the judge suspended the bulk of it, I see nothing in her Honour's consideration of the applicant's prior convictions sufficient to imply the attribution of excessive or otherwise improper weight to their significance.

21 In brief substance, the applicant's contention that the sentence was manifestly excessive was based on four considerations:

1. First, that on the evidence before the judge the applicant had not used a great deal of force when punching Ms Earl and thus that those of the injuries suffered by Ms Earl which were to be attributed to the applicant were at the lower end of the range.
2. Secondly, that there was a range of mitigative considerations, which included a plea of guilty entered at the first reasonable opportunity, the absence of prior convictions for violence, the absence of previous offending for 16 to 17 years, the significant contribution to volunteer work with the Salvation Army over a period of five years following his release from gaol, what the judge found to be reasonably good prospects of rehabilitation, the appellant's age and ill-health (he was 55 years old and, as the judge noted, there was some evidence that he suffered from asthma, depression and panic attacks) and the delay of over two years since the offences were committed.
3. Thirdly, that the appellant's counsel on the plea had urged the judge in the circumstances to impose a community-based order.
4. Fourthly, that the counsel for the Crown on the plea told the judge that the Crown was not calling for an immediate sentence of imprisonment.

22 Since the judge expressly referred in her sentencing remarks to the nature and gravity of the offence and the range of mitigative considerations mentioned by counsel, it can hardly be doubted that her Honour took them into account. Equally, although the judge did not expressly refer to the Crown's submission as to whether it would be open to avoid an immediate sentence of imprisonment, there is no reason to suppose that her Honour would not have taken those submissions into account. Regardless, however, of whether the Crown conceded that a lesser sentence might suffice, it was for the judge to decide on the sentence to be imposed, and in the end the question for us is whether it was beyond the range of sound sentencing discretion.

23 In my view, it was not. The maximum penalty for the offence in question is five years' imprisonment. Despite the limited nature and extent of the attack, and the injuries which it was shown to have caused, it was serious for the reasons given by the judge. The victim was a person with limited cognitive impairment and to that extent she was vulnerable and in need of care and support. As the applicant's wife, she was entitled to his love and protection and, instead of affording her that, he assaulted her in their home. As such, the offence involved a gross breach of trust in the place where the victim was most entitled to feel safe. General deterrence is of real importance in cases of domestic violence, especially in cases where victims are particularly vulnerable. And because of the applicant's prior convictions, aged as they were, it was apparent that there was a need for some measure of specific deterrence.

24 No doubt the applicant was of relatively mature years and afflicted by some degree of ill health, and no doubt he was entitled to a considerable discount for his plea of guilty entered at the first reasonable opportunity and the remorse which it may be thought to signify. No doubt, too, there had been a degree of delay and the applicant was entitled to have that taken into account, as well as the steps he had taken towards rehabilitation following his release from gaol, and what the judge considered to be the limited chance that he would re-offend. But when all of that is taken into account and balanced against the other sentencing considerations to which her Honour referred, I am not persuaded that a sentence of 14 months' imprisonment of which all but ten months are suspended is beyond the range.

25 Finally, I note that reference was made in the course of argument to the fact that, in propounding the order for suspension of 10 months of the sentence of 14 months' imprisonment, her Honour directed that the period of suspension should run from the prisoner's date of release. In our experience, that is unusual even if it is not unprecedented. Typically, the period of suspension is expressed to run from the date of imposition of sentence, and that has the advantage of helping to avoid mistakes. Contrastingly, while there is nothing intrinsically wrong with the way in which her Honour went about it - since, on any analysis, the period of suspension was less than the maximum prescribed by s 17(2) of the Sentencing Act 1991 - the method which was used in this case would run the risk in other cases, where larger sentences are involved, that a sentencing judge might overlook that the period of suspension when added to the period of immediate imprisonment could exceed the maximum of three years which is permitted under s 17(2). Consequently, we suggest that it is a practice which ordinarily should be avoided.

27 I agree with the learned presiding judge that the application for leave to appeal against sentence should be refused, but I wish to add two observations.

28 First, to my mind, what was said on the plea to be an agreed opening by the prosecutor concerning the commission of the offence strongly suggested, although it was not said in so many words, that the applicant had struck his victim multiple times in the course of a single, angry, short-lived outburst. It would have been better, if that was the basis upon which the applicant's guilty plea had been negotiated, that the prosecutor had made that matter very clear in his opening, or else that counsel for the applicant had done so in the course of the plea. Instead, the matter was not quite pinned down. The consequence was, as I see it, that the precise

basis upon which the judge sentenced the applicant was not established, in the sense that her Honour rather stated that the duration of the assault was unclear.

29 Whilst it could never have been acceptable for the applicant to have struck his wife to the head on multiple occasions, I should say that there would be a distinct difference in culpability between doing so in a single, angry, short-lived outburst by contrast with other circumstances, the latter of which could range between repeated assaults over a period of hours and separate assaults, though little separated in time.

30 It is clear that her Honour did not find, adversely to the applicant, that the offence was constituted by assaults over a period of hours. It is wholly improbable that she would have made such a finding. We were told from the Bar table today that at the committal Ms Earl gave evidence of sitting on the side of her bed for several hours whilst the applicant stood above her for that period, periodically striking her.

31 Beyond that, as I have said, her Honour did not make a positive finding when I think that she could and desirably should have done so. But whilst, for reasons indicated, I do perceive a difference between the gist of what was opened and her Honour's finding of indeterminacy as to the duration of the assault, I am not persuaded that her Honour's overall assessment of the gravity of the offence, set in the general sentencing context, either discloses specific error or makes out a case that the sentence imposed was manifestly excessive.

32 Second, whilst I have not ultimately found it decisive, I have been concerned about what might properly be drawn from several references in her Honour's sentencing remarks to the cerebrovascular injuries sustained by Ms Earl. Those injuries required surgical intervention and have left Ms Earl with permanent sequelae. Her Honour said in passages cited by the learned presiding Judge that:

It can never be known for certain that there was a causal link between your punches and the serious medical events which followed.

It may be that there is no other connection than the fact that they occurred within days of each other.

33 The applicant fell to be sentenced on the basis that there was no such connection. If the judge had sentenced him on any other basis she would have erred. Those passages suggest to my mind at least that her Honour entertained doubt about the matter. But they were followed by her Honour saying that 'therefore there was only a limited amount' which she could take into account from the various victim impact statements, and by her specifying matters that could be taken into account which put to one side the sequelae of the cerebrovascular injuries. I think that her Honour's remarks were apt to confuse, notwithstanding her conclusions as I have just recounted them. But in the end it seems to me that her conclusion must be accepted rather than that I should focus upon what preceded them.

35 The application for leave is refused. I should say for the avoidance of doubt that the sentence of 14 months' imprisonment which was imposed below is confirmed, as is the order that ten months of the sentence be suspended for a period of 12 months from the date of the prisoner's release. The effective sentence, therefore, is four months' imprisonment. It is declared that 28 days have already been served under the sentence imposed. It is directed that the fact of the declaration and its details be entered in the records of the Court.

[5] See and compare R v Bunning [2007] VSCA 205, [7].

[6] R v Storey [1998] 1 VR 359, 371; Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1, 12 [14].

[7] R v Swift [2007] VSCA 52; (2007) 15 VR 497, 499 [8].